Mediating Employment Discrimination Claims


A court case can be a lengthy process, exhausting those involved emotionally, physically and even spiritually. As you consider your options when it comes to your employment discrimination case, know that court isn’t the only avenue in which to pursue your claim. Thousands of Equal Employment Opportunity cases are handled outside the courts through mediation. You may find this process easier, saving you time, money and energy.
What is Mediation?
Mediation is a process through which a dispute is settled through mutual agreement of both of the parties involved. The parties get together in the presence of a mediator, discuss the case, and through analysis come to an agreement regarding what the outcome of the dispute should be. Mediation through the Equal Employment Opportunity Commission, as in all mediation cases, must be a voluntary process for both parties.
How the EEOC Handles Mediation
The Equal Employment Opportunity Commission selects cases for mediation, and then proceeds with the mediation process through meetings at mutually agreed upon times and places. Many participants in the EEOC mediation process claim a successful outcome. If a mutual agreement is reached, then that agreement is legally binding.
A Simpler, More Straightforward Process
Mediation, put simply, cuts out the headaches and turmoil of litigation. It is often a shorter process, enabling both parties to put the pain of the discrimination claim behind them as soon as possible. In addition, mediation is often more satisfying to both parties. While attorneys should be present during the mediation process, mediation tends to be less of a burden for all involved than litigation.
Other Reasons to Mediate
One key advantage of mediation is privacy. Individuals are not forced to go through the very public nature of a day in court. Embarrassing events and details can be discussed at length, in private, with no fear of public consequences.
You Still Need an Attorney
Whether or not you choose to move forward with the mediation process, you should still have an attorney standing by your side through the process. As mentioned above, mediation is just as legally binding as a court case, and as such should be treated with the same gravity and respect.
For the best employment attorney help available, call the Law Offices of Valli, Kane & Vagnini. You need an expert team of attorneys with decades of experience in employment law to help ensure your mediation or litigation is completed successfully. Call now to discuss how Valli, Kane & Vagnini can help.

employment discrimination case mediation

Employment Discrimination-Know Your Rights

Discrimination in the workplace may be difficult to define but when it occurs, you should be aware and ready to take action. Under no circumstance is employment discrimination okay. It is important to know what qualifies as unfair and what factors you should consider before filing a lawsuit against an employer. Understanding employment discrimination in the workplace is vital when it comes to knowing what you must do if it ever happens to you.
So What Exactly is Employment Discrimination?
Employment discrimination occurs when a job seeker or an employee is treated unfavorably or unfairly because of his/her race, skin color, national origin, sex, age, disability, religion, genetic information etc. Workplace discrimination also extends beyond hiring and firing, for example, suggesting preferred candidates in a job ad, denying certain employees benefits or compensation, and discrimination while issuing promotions and lay-offs. There are many more different forms of employment discrimination and laws to protect employees. Listed below are some of the most common cases:
Racial Discrimination – Racial Discrimination takes place when a potential employee, employee or a group of employees are treated differently or unfairly based on their race or because of characteristics associated with race including facial features, hair, or color of their skin. Title VII of the Civil Rights Act of 1964, prohibits discrimination based on race as well as color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.
Age Discrimination – Age Discrimination comes about when an employee is treated in an unfair manner because of their age, for example, being treated poorly because you are ‘too old’. The Age Discrimination Employment Act (ADEA) protects employees who are 40 years old and older. In addition, under the NYHRL, Section 3-a, it states that it is unlawful for any employer to refuse employment or compensation to any person 18 years old and older because of their age.
Gender, Sexual Orientation, and Hostile Workplace Discrimination

  • Equal Pay-Gender discrimination includes sexual discrimination and/or sex-based discrimination. This occurs when any employer treats an employee in an unfair way or inequitable manner based merely on gender. This includes equal pay for men and women which is federally protected under the Equal Pay Act of 1963.
  • Sexual Orientation-Sexual Orientation discrimination also falls under this category when being homosexual, heterosexual, bisexual or trans gendered impacts the way you are treated in the workplace or during the recruiting process. This kind of discrimination is protected under the Civil Rights Act and would be further be protected in a bill that is still awaiting passage by congress called the Employment Non-Discrimination Act (ENDA).
  • Sex/Hostile Work Environment– Also protected under the Civil Rights Act, Sex/Hostile Work Environment is discrimination based in a sexual hostile environment. The “hostile environment” law also applies to harassment on the bases of race, color, national origin, religion, age, and disability.

National Origin & Religion Discrimination – Our country is widely mixed with people from different parts around the globe. National Origin discrimination occurs when an employee is ignored and/or treated poorly because of his or her accent, nationality, or ethnicity. Companies are required to fairly accommodate an employee’s religious and cultural beliefs as long as they don’t negatively interfere with the workplace environment. This act of discrimination is protected under Title VII of the Civil Rights Act.
Disability Discrimination- The Disability Discrimination Act focuses on the specific needs of the blind, partially blind, physically or mentally handicapped or people with disabilities. Disability is defined by the Americans with Disabilities Act of 1990 (ADA) as a physical or mental impairment that considerably limits a major life activity. Discrimination includes denying employment opportunities to people who are disabled but qualify for the position or not accommodating the known physical/mental limitations of disabled employees
Pregnancy Discrimination-There are laws that protect pregnant women and people with disabilities under the Civil Rights Act and the Pregnancy Discrimination Act. Pregnancy, childbirth, and related medical conditions must be treated in the same way as other temporary illnesses or conditions. Additional rights are available to women and others under the Family and Medical Leave Act (FMLA), which is enforced by the U.S. Department of Labor.
If you feel you may be a victim of employment discrimination, let us help you protect your rights. Call the Law Offices of Valli Kane & Vagnini today for a free consultation.

Wage and Hour Litigation: Are You Being Paid What You Deserve?

Wage and Hour Litigation: Are You Being Paid What You Deserve? by Robert J. Valli, Jr.

Wage and Hour Litigation: Are You Being Paid What You Deserve? by Robert J. Valli, Jr.
{6 minutes to read}  In addition to employment discrimination the firm practices wage and hour litigation. Wage and hour litigation is mostly comprised of two separate violations, minimum wage and overtime.  The Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL) delineate the rules for employers regarding paying Minimum Wage and Overtime.Continue reading

Criminalizing Wage Theft, New Jersey, New York, and California

Businessperson Signing Cheque In Office

Janitors, servers, and construction workers have something in common. They are likely to face wage theft in industries that underpay and undervalue their workers. To address wage theft, workers have filed private lawsuits and/or have reached out to their state or federal departments of labor. These actions generally fall under the realm of civil actions, considered as private disputes among individuals and organizations.

Many times, deterrents such as lawsuits and government investigations, are not strong enough to disincentivize companies from stealing wages from their workers. New York, California, and New Jersey are states that have implemented measures to criminalize wage theft.

The wage theft burden rests on the worker. The worker must diligently pursue their claim and choose the right type of legal avenue after they have lost a source of income. On top of the loss of income, the worker has to be careful about how they pursue their claims because there is always a chance that the employer could retaliate.

New Jersey has Bill A-2903/S-1790, which increases penalties and added jail time if companies did not pay their workers, provide benefits, or retaliated against workers due to complaints about wage theft. This bill makes wage theft not only more financially damaging to an employer but damaging to a company’s reputation and risky for those exposed to potential imprisonment.

This step towards criminalizing wage theft is undoubtedly a strong support of workers’ rights. It adds another enforcement mechanism to combat exploitation so common to large volatile industries. The criminalization of wage theft will also help private lawsuits, providing legal support and leverage to those alleging wage theft.

James A. Vagnini
Partner
email: [email protected]

Bostock v. Clayton County, Georgia (Decided June 15, 2020)

The Statue of Justice - lady justice or Iustitia / Justitia the Roman goddess of Justice

The Statue of Justice - lady justice or Iustitia / Justitia the Roman goddess of Justice
{6 minutes to read}  Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against an individual “because of such individual’s … sex.” 42 U.S.C. § 2000e-2(a)(1). In a landmark decision, the Supreme Court held in Bostock v. Clayton County that this provision prohibits an employer from firing an employee for being gay or transgender.

Background 

Bostock is the consolidation of three cases from different circuits.

1. In Altitude Express, Inc. v. Zarda, the plaintiff mentioned that he was gay to his employer. A few days later, his employer fired him. The Second Circuit held that Title VII prohibited an employer from firing an employee because he is gay.

2. In Bostock v. Clayton County, Georgia, the employer fired the plaintiff soon after he joined a gay recreational softball league. The Eleventh Circuit held that the plaintiff had no claim for sexual orientation discrimination under Title VII.

3. In R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, the employer fired the plaintiff, who identified as male at birth, shortly after she revealed that she was transgender and planned to “live and work full-time as a woman.” The Sixth Circuit held that she could bring a Title VII claim.

The employers in these cases conceded that they intentionally fired the plaintiffs for being gay or transgender but argued that was permissible under Title VII. The Supreme Court granted certiorari to resolve the circuit split on this issue.

The Court used textual analysis to reach its holding in favor of the plaintiffs.

The Court assumed that “sex” refers to biological distinctions between male and female. The Court also noted that “because of” incorporates a “but-for” causation standard. That is, Title VII is triggered if an employment outcome would not have occurred but for the employee’s sex. There may be more than one “but-for” cause of an employer’s action, the Court emphasized.
Next, the court turned to the term “discriminate.” This means to “treat an individual worse than others who are similarly situated.” In Title VII disparate treatment cases, the plaintiff must show that the employer intentionally discriminated against her. Put together, Title VII prohibits an employer from intentionally treating a person worse in part because of that person’s sex. Thus, an employer has violated Title VII if it fires an employee for conduct or traits that the employer “would tolerate in an individual of another sex.”
Applying that rule here, the Court held that Title VII’s “because of sex” provision protects homosexual and transgender individuals. “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” the Court held.
For example:

Consider two employees, one male, and one female, who are both attracted to men. If the employer fires the male employee because he is attracted to men, the employer has discriminated against the male employee because of his sex. The employer has intentionally treated him less favorably because of a trait — attraction to men — that the employer tolerates in the female employee.

The same result follows in the transgender context:

Consider an employer who fires a transgender employee who identified as male at birth but now identifies as female. If the employer does not fire an otherwise identical employee who identified as female at birth, the employer has discriminated against the transgender employee based on sex. The employer has intentionally penalized the transgender employee for conduct or traits — identifying as female — that the employer tolerates in the employee who identified as female at birth.

In sum, “homosexuality and transgender status are inextricably bound up with sex,” and are thus protected under Title VII.

It is immaterial that the Title VII drafters may not have expected the law to protect gay or transgender individuals, the Court held.

Among other things, the employers argued that few people in 1964 would have anticipated that the law would protect homosexual or transgender individuals. The Court rejected this argument. First, the statute’s text is unambiguous. As described above, Title VII prohibits sex discrimination, and it is impossible to discriminate based on homosexuality or transgender status without discriminating based on sex. Thus, there is no need to speculate about what people may have expected the law to cover in 1964.
Furthermore, the Court noted that it is not unusual for a statute to apply in situations unanticipated by Congress. For example, in Oncale v. Sundowner Offshore Services, Inc., the Court recognized that Title VII prohibits same-sex harassment, even though this was not the “principal evil” that Title VII sought to redress.
Title VII’s application to new situations “does not demonstrate ambiguity; instead, it simply demonstrates breadth,” the Court held.
If you believe that you have been discriminated against because of your sex, sexual orientation, sexual identity, or transgender status, you may wish to consult with the attorneys at Valli Kane & Vagnini LLP.

James A. Vagnini
Partner
email: [email protected]

The Restrictions on Attorney Fees and Settlements in FLSA Deals

Midsection of judge writing on paper at table in courtroom

{6 minutes to read}  Earlier this year, the United States Court of Appeals in the Second Circuit made a decision that will change how courts analyze attorney’s fees in the Federal Labor Standards Act (FLSA) actions. It is widely accepted that attorney’s fees must be reasonable. However, evaluating reasonability invites subjectivity and discretion. Generally speaking, Judges make the final decision to either approve or reject an FLSA settlement agreement. But how far can a court go? 

In Fisher v. SD Protection Inc., 948 F.3d 593, (2nd Cir. 2020), the Second Circuit reviewed the District Court’s decision to reject and “alter” a settlement between a plaintiff and defendant. The Judge wanted to reduce the proportion of attorney’s fees (to 33% of the total recovery) and grant the plaintiff a higher amount of recovery.1 The defendant, SD Protection Inc., agreed to settle for $25,000.2 As part of the settlement, the plaintiff would receive $2,000 in damages for unpaid overtime while his attorneys would receive fees in the amount of $23,000.3 The trial court judge rejected these terms and revised the settlement distribution so that the plaintiff would receive $15,055, and the attorneys would receive $8,250 in fees and $1,695 in costs.4 The lower court’s revision of the parties’ settlement terms went up on appeal and the Second Circuit recently held that the lower court abused its discretion in setting a cap on recovery and altering the settlement agreement.5

Under the FLSA, the only rule for attorney’s fees included in settlement agreements is that those fees must be “reasonable.” 6; 7

A majority of courts say that the “most critical factor” in considering the reasonability of the attorney’s fees is “the degree of success obtained.”8 In Hensley v. Eckerhart, 461 U.S. 424, 436 (1983), the Supreme Court set a standard for reviewing fees based on “(1) whether the plaintiff achieves full or partial success and (2) the hours reasonably expended on the litigation times a reasonable hourly rate (lodestar).9 In Hensley, the court held that the lower court failed to review the attorney’s fees based on “partial success.”10 This precedent set the stage for an even greater pattern of subjectivity.

Since the decision in Hensley, courts have reviewed the attorney’s success in different ways:

  • In Pisoni, the court ruled that attorneys are allowed to raise alternative legal grounds for the desired outcome, and the court’s rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee.11
  • Some courts have allowed judges to adjust attorney fees downward to reflect results far below expectations.[12]
  • Other courts have decided that hours spent on unsuccessful claims should be excluded if the claim is “distinct in all respects from [the] successful claims.”13

So how can a Judge say that you, as the attorney, were unsuccessful when you got the opposing party to surrender and agree to pay your client?

In New York, like most jurisdictions, the law states that a settlement agreement is a contract that must be construed under the general principles of contract law.14 Under contract law, agreements are to be construed in accordance with the parties’ intent,15 and the agreement must be clear and unambiguous.16 This standard also applies to settlements that have the payment of attorney’s fees written into the term of the agreement. After all, the payment of attorney’s fees by the Defendant is a benefit to the Plaintiff. 

The question remains…how much power do Judges have when reviewing contracts? If the intent of both parties is clear and the client has already signed a retainer agreement with the attorney, why should the settlement be reviewed at all? In Fisher, the Second Circuit decided that judges should review settlement agreements for fairness or potential abuse.17

In Fisher, the court ruled that Judges are barred from changing the terms of a settlement agreement.18 However, the court confirmed that a Judge has the power to deny settlement agreements outright.19  Imagine a case where both sides work tirelessly to come to an agreement, but a Judge has the discretion to throw away all of that work. Technically, Judges do not even have to rewrite the terms of distribution, they can deny the agreement until the distributions are what they would have written themselves. This type of scenario will certainly lead to a flood of appeals.

The decision in Fisher is a great step in reducing a court’s role in deconstructing settlement agreements, but in FLSA matters, the Judge can still reject settlements until the parties reach terms that would be ultimately approved.

_______________________________________________________________

Id.

Fisher, 948 F.3d at 598. 

Id. 

Id.

Fisher, 948 F.3d at 607.

29 U.S.C. § 216(b);

Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199, 206 (2d Cir. 2015).

8   Farrar v. Hobby, 506 U.S. 103, 114 (1992).

 Id.

10  Hensley, 461 U.S. at 438.

11  Pisoni v. Illinois, 2018 WL 4144495, *4 (S.D. Ill 2018).

12  Bankston v. State of Ill., 60 F.3d 1249, 1256 (7th Cir. 1995).

13  Rayna P. v. Campus Community, 390 F.Supp.3d 556, 568 (D. Del. 2019).

14  Collins v. Harrison–Bode, 303 F.3d 429, 433 (2nd Cir. 2002).

15  Greenfield v. Philles Records, Inc., 98 N.Y.2d 562, 569 (N.Y. 2002).

16  R/S Assoc. v. N.Y. Job Dev. Auth., 98 N.Y.2d 29, 32, (N.Y. 2002).

17  Fisher v. SD Protection Inc., 948 F.3d 593, 600 (2nd Cir. 2020).

18  Id at 605.

19 Id.

_______________________________________________________________

James A. Vagnini
Partner
email: [email protected]

Rape Trauma Syndrome and Common Rape Myths

{5 minutes to read}  In January, former Hollywood movie producer Harvey Weinstein faced trial in New York Supreme Court. Weinstein, who has been accused of sexual assault and harassment by at least 80 women in the past few years, faced several charges including rape, sexual abuse, sexual misconduct, and predatory sexual assault. Ultimately, the jury returned a guilty verdict on two charges — criminal sex act in the first degree and rape in the third degree. Weinstein was acquitted of predatory sexual assault and first degree rape. Currently awaiting sentencing, he faces a minimum sentence of five years and a maximum sentence of 25 years.

As a central part of their strategy, Weinstein’s defense team argued that several of his accusers continued to remain in contact with him well after their alleged attacks. The defense pointed to “friendly communications” between Weinstein and the women, business meetings, continued employment, and even trips. This tactic was an effort to discredit the victims, and convince the jury that his encounters with his accusers were, in fact, consensual sexual relationships. However, expert testimony from psychiatrists in the field can shed light into the complex coping mechanisms of sexual assault victims that counter such a strategy.

There are many commonly believed notions regarding the behaviors of rape and sexual assault victims following an attack. However, the truth is that the reactions of victims can manifest in ways which often seem atypical to those looking from the outside in. These presupposed “rape myths” perpetuate false beliefs, namely that victims distance themselves from their attackers following an assault, and that victims report the attack to law enforcement officials. Expert testimony can be used to educate the jury on rape trauma syndrome and common rape myths.

Rape trauma syndrome (RTS) is a post-traumatic stress disorder — specifically related to sexual assault — that is accompanied by certain physical or psychological responses. Most victims of rape and sexual assault experience some form of RTS. Courts have regularly held that properly admitted expert testimony can be used to provide an explanation for victim behavior which is inconsistent with a claim of rape. Expert testimony on RTS can help the jury in resolving frequent misconceptions that often stem from social attitudes regarding sexual assault, consent, and culpability.

Reporting the Attack

In the Weinstein case, the prosecution called on Dr. Barbara Ziv, a forensic psychiatrist, to testify on rape myths and explain the complexities of rape trauma to the jury. Dr. Ziv testified that it is “very rare” for victims to immediately disclose incidents of assault to those around them and even less common for victims to report the assault to law enforcement, especially when they have been assaulted by someone they actually know. 

Similar to Dr. Ziv, experts in the field explain that it is common for victims to decide not to report attacks to the police in an effort to move past their experience. Survivors tend to feel re-victimized by the criminal justice system and decide to cope in other ways. 

Additionally, statistics show that reporting is far less likely when a victim has an established relationship with the offender — whether they are intimate partners, former intimate partners, friends, or acquaintances. 

Reasons victims decide not to report incidents of sexual assault include: 

•Shame,

•Fear of a lack of evidence,

•Belief the attack was a personal matter, and

•Uncertainty of the offender’s intent.

Distancing From the Attacker

Dr. Ziv also provided testimony on victims distancing themselves from their attackers — another classic rape myth. In response to their assault, a victim may decide to continue their relationship with the offender in an effort to regain control after an attack. Victims may also try to convince themselves an encounter was consensual by maintaining the status quo with their offender. This form of deflection helps victims to cope with the serious trauma they suffered at the hand of their offender and is their attempt to maintain normalcy.

In the Weinstein case, Dr. Ziv explained that the reasons for continuing communication with an offender can be complex. A victim may be fearful of losing out on job opportunities and ruining their reputation, and decide to put their experience “in a box.” These fears, coupled with threats from their offender, lead victims to deny their experiences and stay involved with offenders even after being assaulted.

James A. Vagnini
Partner
email: [email protected]

Pregnancy and Pay Discrimination Suit Reversed on Appeal

Judge's gavel. Statue of Themis on a thick book in the background.
Lenzi v. Systemax, Inc.: Pregnancy and Pay Discrimination Under Title VII

{5 minutes to read} Our client, Plaintiff Lenzi, was the Vice President of Risk Management for Systemax, Inc. She alleged that she was paid a below-market rate for her position, while the male executives at the company were paid above market rate. She repeatedly asked the CFO to be paid the same as the other male executives. She claims that for this she was demoted and subjected to an audit — the first of its kind at the company, and also faced pervasive sex-related comments from the CFO. Soon after, she disclosed her pregnancy to the company. Less than a month later, she was fired. The plaintiff sued Systemax, alleging pregnancy discrimination and sex-based pay discrimination. The district court initially ruled in favor of Systemax, but in a December 6, 2019 opinion, the Second Circuit reversed that ruling.

Pregnancy Discrimination Claim

Congress enacted the Pregnancy Discrimination Act (PDA) in 1978. The PDA prohibits employers from discriminating against an employee on the basis of pregnancy. PDA plaintiffs are required to show that the employer’s action, such as firing, occurred in circumstances that give rise to an inference of unlawful discrimination. Such an inference can be supported by close temporal proximity between the employee disclosing her pregnancy and the employer firing her. PDA plaintiffs face only a minimal burden in establishing a PDA claim.

In this case, Systemax fired the plaintiff less than a month after she disclosed her pregnancy to the company. Such little time between her disclosure and firing, when coupled with additional allegations demonstrating gender animus, were enough to support an inference that Systemax discriminated against her because of her pregnancy.

Title VII Pay Discrimination

Under Title VII of the Civil Rights Act of 1964, it is unlawful for an employer to “discriminate against any individual with respect to his [or her] compensation…because of such individual’s…sex.” A similar statute, the Equal Pay Act (“EPA”), requires employers to provide men and women with equal pay for equal work. Thus, one way for a plaintiff to state a claim under either statute is to show that she performed work equal to another man in the same position but was paid less (the “unequal pay for equal work” standard).

The court noted that although the EPA and Title VII both attack sex-based pay discrimination, the standards used for the two statutes are different. Importantly, plaintiffs who bring a Title VII pay discrimination claim may prevail by proving disparate treatment other than via the standard of unequal pay for equal work. In other words, a Title VII plaintiff does not need to show that another employee of the opposite sex was paid more for performing the same job duties. Instead, a Title VII plaintiff just needs to show that she suffered some form of sex-based pay discrimination. For example, a female employee might work in a unique position at a company but receive less pay than she would if she were male. Despite not meeting the “unequal pay for equal work standard,” she would still have a Title VII pay discrimination claim.

In our client’s case, the district court erroneously looked only to the unequal pay for equal work standard in assessing the plaintiff’s Title VII claim. The district court held that because the plaintiff could not show that her male counterparts performed substantially the same work as she did, she did not have a Title VII claim. The Second Circuit reversed that opinion and held that the plaintiff did have a Title VII pay discrimination claim because she was able to allege disparate treatment based upon compensation benchmarking data. The court noted that the plaintiff was paid below the market rate for her position. Her male counterparts, although performing different job duties, were paid above the market rate. This pay disparity, in addition to the CFO’s pervasive sex-related comments in the workplace, supported a Title VII sex-based pay discrimination claim.

For more information relating to pregnancy and pay discrimination, or any other employment-related dispute, please feel free to contact us.

James A. Vagnini
Partner
email: [email protected]

Domestic Workers in New York: What Does the Bill of Rights Cover?

Senators Kamala Harris and Pramila Jayapal have recently introduced the Domestic Workers’ Bill of Rights Act in an effort to provide federal protections to domestic workers. The lack of federal protections has contributed to the exploitation, harassment, and economic insecurity domestic workers face.

It is unclear if or when this bill would become a law. However, New York State has already passed its version of a Domestic Workers’ Bill of Rights. Analyzing this statewide Bill of Rights may provide some answers as to how extended legal protections help domestic workers, and where these protections fall short.

The Fair Labor Standards Act (FLSA), enacted in 1938, is the law that provides minimum wage and overtime protections to most workers. Initially, the FLSA excluded both domestic workers and farm workers. In the 1970s, following activism by several domestic worker organizations, Congress explicitly extended FLSA coverage to “domestic service” workers in 1974.

This coverage remains limited because Congress included many exemptions that leave domestic workers without much protection. For example:

  • Live-in domestic workers are exempt from receiving overtime pay if they work over forty hours a week.
  • Domestic workers who are only employed to provide “companionship services” to persons who are elderly, ill or disabled, are not entitled to minimum wage or overtime pay.
  • Domestic workers cannot unionize under the National Labor Relations Act (“NLRA”) and are excluded from the Occupational Health and Safety Act (“OSHA”) provisions. 

In New York State, a domestic worker is someone who works in another person’s home to:

  1. Care for children or elderly persons;
  2. Clean, cook or generally keep the house;
  3. Complete other “domestic” tasks within the home including repairs or gardening.

While a full-time live-in nanny may qualify as a “domestic worker” within the New York State definition, a casual babysitter would not receive the same protections nor would a person working for their own family members.

It is important to recognize that the law covers all domestic workers, regardless of their immigration status. Domestic workers do not have to fear that the government will deport them if they seek legal assistance or complain about illegal working conditions. Domestic workers are also protected from unlawful harassment and retaliation, which includes sexual harassment and harassment on the basis of gender, race, religion, or national origin.

The employer requirements in New York State aim to provide domestic workers with the minimum wage and overtime coverage that other workers already enjoy. Because domestic work is such a precarious employment situation, the requirements also speak to the needs of workers in this specific industry. 

An employer of a domestic worker must: 

  1. Pay the minimum wage for the region. 
  2. Pay overtime at 1 1/2 times your basic rate of pay after 40 hours of work in a calendar week. [If the domestic worker lives in the home, the employer must pay them overtime after 44 hours of work in a week.]
  3. Give one day (24 hours) of rest per week or pay the overtime rate if the worker must work that day.
  4. Give the worker at least three paid days off after one year of work.
  5. Pay the worker each week.
  6. Not deduct money from pay without their written permission, except for benefit deductions.
  7. Provide written notification of all deductions.
  8. Keep detailed payroll and time records of the hours worked, wages, and deductions of all wages.

Despite the extension of rights, it is still very common for workers to be paid “off the books” without access to the legally protected full wages or benefits. Moreover, persons who work as “home health aides” or “home care aides” are within the gray areas of the law. Nationally, home health aides are considered “companions for the elderly” meaning that they are exempt from the FLSA regulations governing minimum wage and overtime. In New York State, if home health aides work for an agency and not directly for the members of the household, they are not protected as “domestic workers.”

The Domestic Workers’ Bill of Rights provides coverage that recognizes the rights of domestic workers and addresses the unique challenges to preserving a professional environment within a home. However, the coverage of the bill could be improved for home health aides or “companions for the elderly” to ensure that those completing tasks that are essentially similar to domestic workers receive the same protections as domestic workers. 

References:

New York Department of Labor. “Domestic Workers’ Bill of Rights

The United States Department of Labor. “Home Care

___________

1 The United States Department of Labor. “Home Care”

https://www.dol.gov/whd/homecare/faq.htm

2 New York Department of Labor. “Domestic Workers’ Bill of Rights”.

https://labor.ny.gov/legal/domestic-workers-bill-of-rights.shtm

3 New York Department of Labor. “Domestic Workers’ Bill of Rights”.

https://labor.ny.gov/legal/domestic-workers-bill-of-rights.shtm

James A. Vagnini
Partner
email: [email protected]

Fischman v. MCHA: Privilege and Confidentiality Regarding In-House Counsel

Attorney-Client Privilege concept

Attorney-Client Privilege conceptPrivilege and Confidentiality in the Attorney Client Relationship
 Regarding In-House Counsel and Their Employer
Fischman v. Mitsubishi Chemical Holdings America, Inc.(18-cv-08188)
{3 minutes to read}  Attorney client privilege is an integral part of our legal system.  As most situations that require legal intervention are emotional and stressful, reliance on an experienced professional who will commit to your needs while keeping your information confidential has allowed millions of people to have a voice and retain their rights.Continue reading